Intentional torts are an area of the law not often examined in detail. However, intentional torts, such as false arrest and malicious prosecution, offer a fascinating look at how criminal and civil litigation overlap and eventually come to terms with each other.
A case based on false arrest and malicious prosecution begins in criminal court. A classic example is the shoplifter who is arrested and prosecuted by a merchandise establishment. Normally (although by no means always) the criminal complaint for retail theft is signed by the individual who witnessed the alleged theft. If the criminal complaint is dismissed or if the case goes to trial and the individual is found not guilty, a cause of action may exist against the merchandise establishment and/or the individual who signed the criminal complaint.
If a civil complaint is filed based on false arrest and malicious prosecution, Illinois law offers several solid defenses, not the least of which is the Illinois Retail Theft Act. The Illinois Retail Theft Act, discussed below, offers an affirmative defense to merchants accused of false arrest, although it is not an absolute bar to such a cause of action. Other defenses work in conjunction with the Illinois Retail Theft Act, weaving a web a legal defenses when criminal charges are made based on solid facts.
Malicious Prosecution is a separate cause of action, and initial criteria necessary to file such and action has fairly recently been modified by the Illinois courts. This article will review the torts of false imprisonment/false arrest and malicious prosecution, the primary defenses available to each of these torts and the evolving nature of malicious prosecution claims.
FALSE IMPRISONMENT/FALSE ARREST
To sustain an action for false arrest or false imprisonment, plaintiff has the burden of proving:
restraint or arrest, against plaintiff's will,
caused or procured by defendants
without having reasonable grounds or probable cause to believe that the offense was committed by plaintiff.
Meerbrey v. Marshall Field & Co., Inc., 139 Ill.2d 455, 464, 564 N.E.2d 1222, 1231, 151 Ill.Dec. 560, 569 (Ill. 1990); Davis v. Temple, 284 Ill.App.3d 983, 988, 673 N.E.2d 737, 472, 220 Ill.Dec. 593, 598 (5th Dist. 1996); Hanna v. Marshall Field & Co., 279 Ill.App.3d 784, 790, 665 N.E.2d 343, 349, 216 Ill.Dec. 283, 289 (1st Dist. 1996). reh'g denied, May 21, 1996.
A. Voluntarily Consent To Confinement.
The alleged confinement must be against plaintiff's will. Lopez v. Winchell's Donut House, 126 Ill.App.3d 46, 49, 466 N.E.2d 1309, 1312, 81 Ill.Dec. 507, 510 (1st Dist. 1984). Voluntary consent to confinement often nullifies false imprisonment. Hanna v. Marshall Field & Co., 279 Ill.App.3d at 790, 665 N.E.2d at 349, 216 Ill.Dec. at 289.
In Lopez, the plaintiff (an employee of the defendant) was suspected of selling donuts to patrons and pocketing the money she received. Without explaining his suspicions, plaintiff's manager called plaintiff at home and asked her to come to Winchell's. Plaintiff voluntarily came to the store and accompanied two managers to a back room. One of the managers put a "latch" on the door and confronted plaintiff with his suspicions. The court affirmed summary judgment for employer defendant Winchell's stating:
It is essential ... that the confinement be against plaintiff's will and if a person voluntarily consents to the confinement, there can be no false imprisonment. Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft ... is not enough ...
Lopez, 126 Ill.App.3d at 49, 446 N.E.2d at 1312, 81 Ill.Dec. at 510 citing Fort v. Smith, 85 Ill.App.3d 479, 481, 407 N.E.2d 117, 119, 40 Ill.Dec. 886, 888 (5th Dist. 1980)
Voluntary confinement is not as strong a defense when the plaintiff is not an employee. In such situations, courts have found that to hold the customer/plaintiff could have "unilaterally ended the confrontation ignores the reality of the situation". Robinson v. Weibolts Stores, Inc., 104 Ill.App.3d 1021 (1st Dist 1982).
B. Probable Cause to Effectuate the Arrest.
Existence of probable cause is an absolute bar to claims for false arrest or false imprisonment. Nielsen v. Village of Lake in the Hills, 948 F.Supp. 786 (N.D.Ill. 1996); Kincaid v. Ames Dept. Stores, Inc., 283 Ill.App.3d 555, 561, 670 N.E.2d 1103, 1109, 219 Ill.Dec. 215, 221 (1st Dist. 1996), reh'd denied, appeal denied, 169 Ill.2d 569, 675 N.E.2d 634, 221 Ill.Dec. 439 (Ill. 1996). Some courts have held that whether the circumstances amount to probable cause is a question of law to be decided by the court (and not the jury). Serpico v. Menard, Inc., 927 F.Supp. 276 (N.D.Ill. 1996); Ely v. National Super Markets, Inc., 149 Ill.App.3d 752, 756, 500 N.E.2d 120, 124, 102 Ill.Dec. 498, 502 (4th Dist. 1986), appeal denied, 114 Ill.2d 544, 508 N.E.2d 727, 108 Ill.Dec. 416 (Ill. 1987).
Probable cause is defined as "a state of facts ... as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person accused is guilty of the offense charged." Carbaugh v. Peat, 40 Ill.App.2d 37, 47, 189 N.E.2d 14, 24 (2d. Dist. 1963). It is not necessary to verify the correctness of each item of information obtained; it is sufficient to act with reasonable prudence and caution in so proceeding. Turner v. City of Chicago, 91 Ill.App.3d 931, 935, 415 N.E.2d 481, 485, 47 Ill.Dec. 476, 480 (1st Dist. 1980). "It is the state of mind of the one commencing the [arrest or imprisonment], and not the actual facts of the case or the guilt or innocence of the accused which is at issue". Serpico v. Menard, Inc., 927 F.Supp. 276, 279 (N.D.Ill. 1996) citing Burghardt v. Remiyac, 207 Ill.App.3d 402, 565 N.E.2d 1049, 152 Ill.Dec. 367, (2d Dist. 1991). Probable cause is determined at the time of subscribing a criminal complaint and it is immaterial that the accused thereafter may be found not guilty. Ely v. National Super Markets, Inc., 149 Ill.App.3d at 754, 500 N.E.2d at 124, 102 Ill.Dec. at 502.
In Burghardt v. Remiyac, 207 Ill.App.3d. 402, 565 N.E.2d 1049, 152 Ill.Dec. 367, the court affirmed summary judgment in favor of the employer (office manager of Swanson True Value Hardware Store) who accused plaintiff employee of falsifying refund slips to steal money from the store. In reviewing whether probable cause existed, the court stated that the "theft complaint against the plaintiff was based upon facts that would lead a man of ordinary caution and prudence to believe or to entertain an honest and strong suspicion that the plaintiff had committed the offense of theft." Burghardt, 565 N.E.2d at 1053, 152 Ill.Dec. at 371. Accordingly, the defendant was entitled to summary judgment. In Burghardt, Defendants systematically reviewed refund receipts which showed that each time plaintiff worked the suspicious receipts were made. Defendant followed up by questioning one of plaintiff's customers. This revealed the customer never returned any merchandise.
In addition, the Illinois Supreme Court has been very clear to point out that "public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused. Joiner v. Benton Community Bank, 82 Ill.2d 40, 42, 411 N.E.2d 229, 231, 44 Ill.Dec. 260, 262 (Ill. 1980).
C. The Illinois Retail Theft Act Provides an Affirmative Defense to Merchants Accused of False Arrest/Imprisonment
The Illinois Retail Theft Act 720 ILCS 5/16(a)-1 et seq. states:
Any merchant who has reasonable grounds to believe that a person has committed retail theft may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:
720 ILCS 5/16A-5.
- In request identification;
- To verify such identification;
- To make reasonable inquiry as to whether such person has in his possession unpurchased merchandise and, to make reasonable investigation of the ownership of such merchandise;
- To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer; ...
Any detention as permitted under the Illinois Retail Theft Act "does not constitute an arrest or an unlawful restraint," and it shall not "render the merchant liable to the person so detained." 720 ILCS 5/16A-6.
To sustain an action for malicious prosecution, plaintiff has the burden of proving:
commencement or continuance of an original criminal or civil judicial proceeding by defendant;
termination of proceeding in favor of plaintiff;
absence of probable cause for such proceeding;
presence of malice;
and damages resulting to plaintiff.
Gonzalez v. Chicago Steel Rule Die & Fabricators Co., 106 Ill.App.3d 848, 849, 436 N.E.2d 603, 604, 62 Ill.Dec. 577, 578 (1st Dist. 1982).
A. Termination Of The Proceedings
Recent Illinois case law has broadened the use of malicious prosecution actions by broadening the definition of "favorable termination." What constitutes a "favorable termination" is evolving in the Illinois courts. Illinois was formerly in the minority, holding that a favorable termination required a factual determination of the underlying case, traditionally by trial or by motion for summary judgment. Siegel v. City of Chicago, 127 Ill.App.2d 84, 261 N.E.2d 802 (1970). Accordingly, if a case was voluntarily dismissed, there was no factual ruling and the plaintiff could not subsequently plead malicious prosecution.
The Illinois Supreme Court has recently reviewed this requirement in two separate cases, one dealing with an underlying criminal case, the other dealing with an underlying civil case. The Illinois Supreme Court relied heavily on the Restatement (Second) of Torts. In essence, this element no longer requires an adjudication on the merits. The courts now look at the underlying reason for the termination, irregardless of whether the termination was based on the merits of the case.
The Illinois Supreme Court also recently reviewed a malicious prosecution case where the underlying case was a criminal charge. Zwick v. Liautaud, 662 N.E.2d 1238, 215 Ill.Dec. 98 (1996). In Zwick, the underlying criminal charges were nolle prosequi (a nolle prosequi is not a final disposition of a case but ... is a procedure which reverts the matter to the same condition which existed before the commencement of the prosecution. People v. Woolsey, 139 Ill.2d 157, 151 Ill.Dec. 309 (1990)). Once again following the Restatement (Second) of Torts, the supreme court held that "in a civil malicious prosecution context, the majority rule is that a criminal proceeding has been terminated in favor of the accused when a prosecutor formally abandons the proceeding via a nolle prosequi, unless the abandonment is for reasons not indicative of the innocence of the accused." Zwick is a case of first impression, and it holds that the "favorable termination" element of a malicious prosecution case has been broadened beyond an adjudication of the merits. It is important to note that the Supreme Court held the burden of proof of a favorable termination remained with the plaintiff. Accordingly, just because a matter is nolle prosequi does not mean plaintiff automatically has proven favorable termination.
The Appellate Courts have had a limited opportunity to explore the parameters of the newly broadened "favorable termination". In one Appellate Court case which came down only a few months after Zwick v. Liautaud, the First District Appellate Court (Cook County) made a distinction for criminal cases which were stricken on leave to reinstate (sol). (Traditionally, a criminal case which is sol'd can be reinstated by the State's Attorney upon proper motion. A case which is Nolle prosequi can not be reinstated.) Relying on case law which pre-dated Zwick v. Liautaud, the First District held that "a plaintiff whose case is stricken on leave must obtain a final determination in his favor by bringing a motion for discharge on speedy trial grounds. Failing to do so, the plaintiff failed to meet his burden of proving a favorable final determination." Vincent v. Williams, 664 N.E.2d 650, 216 Ill.Dec. 13 (1st Dist. 1996). The Fist District court, however, found support from the Supreme Court's decision of Zwick v. Liautaud, stating that a nolle prosequi charge did not establish that the criminal proceedings were terminated in a manner consistent with plaintiff's innocence. The Appellate Court did not examine the Illinois Supreme Court's ruling that evidence had to be presented which established whether or not the discharge of the case was consistent with the plaintiff's innocence.
In a more recent case, Adams v. Sussman and Hertzberg, Ltd., 684 N.E.2d 935, 225 Ill.Dec. 944 (1st Dist 1997), the complaining witness testified in the malicious prosecution proceedings that his superiors had instructed him not to testify in the criminal action. Because the witness did not testify, the State's Attorney dismissed the criminal charges. The court in Adams held that "a dismissal on that basis is a termination in favor of the accused indicative of the accused's innocence." Adams v. Sussman and Hertzberg, Ltd., 225 Ill.Dec. 944, 952. The court in Adams, however, did affirm the defendant's judgment notwithstanding the verdict on the malicious prosecution claim because the defendant had probable cause to proceed with the criminal charges.
B. Probable Cause
The existence of probable cause acts as a defense to an action for malicious prosecution. Ely v. National Super Markets, Inc., 149 Ill.App.3d at 754, 500 N.E.2d at 124, 102 Ill.Dec. at 502. The issues involved in asserting probable cause are discussed under false arrest/false imprisonment.
C. Lack of Malice.
In addition, plaintiff must offer at least some evidence of malice, which is an essential element of the claim of malicious prosecution. Ritchey v. Maksin, 71 Ill.2d 470, 472, 376 N.E.2d 991, 993, 17 Ill.Dec. 662, 664 (Ill. 1978); Robinson v. Econ-O-Corporation, Inc., 62 Ill.App.3d 958, 960, 379 N.E.2d 923, 925, 20 Ill.Dec. 90, 92 (4th Dist. 1978). Malice is defined as initiation of prosecution for any reason other than to bring the party to justice. Ritchey v. Maksin, 71 Ill.2d 470, 472, 376 N.E.2d 991, 993, 17 Ill.Dec. 662, 664; Salmen v. Kamberos, 206 Ill.App.3d 686, 690, 565 N.E.2d 6, 10, 151 Ill.Dec. 735. 739 (1st Dist. 1990). Malice is not a legal presumption which can be inferred merely from lack of probable cause. Hughes v. New York Cent. System, 20 Ill.App.2d 224, 227, 155 N.E.2d 809, 812 (1st Dist. 1959). Malice is also not established merely by the fact that plaintiff was acquitted of the criminal charge. Carbaugh v. Peat, 40 Ill.App.2d 37, 42, 189 N.E.2d 14, 19.
D. Advice of Counsel
Advice of legal counsel is another defense to a claim for malicious prosecution. Karow v. Student Inns, Inc, 43 Ill.App.3d 878, 347 N.E.2d 282, 2 Ill.Dec. 515 (4th Dist. 1976); Accord Wright v. Young, 128 Ill.App.2d 100, 262 N.E.2d 769 (1st Dist. 1970); Galarza v. Sprague, 284 Ill.App. 254; 1 N.E.2d 275 (1st Dist. 1936). In Karow, plaintiff was arrested for criminal trespass even though he was present on the property with the permission of a lawful tenant. The court held that plaintiff could not have been found guilty of criminal trespass as a matter of law. However, the court affirmed judgment on behalf of the defendants in part based on the affirmative defense of legal advice. In Karow, the defendant had made a full disclosure of the plaintiff's activities to the State's Attorney and accordingly, could not have been found liable. In general, this affirmative defense is viable if the defendant can show it relied on an attorney's advice after making a full, truthful and correct disclosure.
Not every criminal charge will lead to a finding of guilty. Some will be dismissed when a primary witness can not be located or when evidence is lost. Some will be defeated at trial because the necessary elements are not established. (For example - when it is not shown that the perpetrator passed the last possible place to pay for the merchandise).
But, as evidenced by the defenses outlined above, the best response to a claim of false arrest and/or malicious prosecution is a solidly supported criminal charge. Documentation of the observations, written down immediately after the occurrence, and videotape of the arrest, when possible, are critical to establishing probable cause. All witnesses to the occurrence, or even the events leading up to the theft, are important to defend the civil litigation.
With the facts in place and the defenses offered by Illinois law, a motion for summary judgment is often a viable, and successful, strategy.